The opinion of the court was delivered by: Honorable Paul L. Maloney Chief United States District Judge
HONORABLE PAUL L. MALONEY
Magistrate Judge Joseph G. Scoville
Denying Defendant's Motion for Reconsideration of US v. Reyes, 2010 WL 816869 (W.D. Mich. March 4, 2010) (Denying 18 U.S.C. § 3582(c)(2) Motion to Reduce Sentence under U.S.S.G. Ams. 505 & 591;
Denying Motion to Hold Aforementioned Motion in Abeyance)
A federal grand jury in this district issued a second superseding indictment against Reyes and others in July 1993; Reyes pled not guilty. On June 4, 1993, the government filed a supplemental notice pursuant to Title 21 alleging that (1) as a direct and causal result of the drug-distribution conspiracy, a man died of a cocaine overdose, and (2) Reyes had a prior felony drug conviction, subjecting him to statutory mandatory minimum of life in prison if convicted. Judge Richard Enslen presided over a seven-day jury trial in October 1993. The jury found Reyes guilty of both counts:
Count 1, Conspiracy to Distribute Heroin, Cocaine and Marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 Count 2, Money laundering, in violation of 18 U.S.C. § 1956(1)(A)(I) (conducting a financial transaction by way of "Western Union" electronic money transfer affecting interstate commerce)
Reyes submitted a sentencing memorandum. Judge Enslen found a base offense level of 43 and added two levels for possession of a firearm during the drug-distribution conspiracy, four levels for being a leader or organizer of the conspiracy, and two levels for obstructing justice, PSR at 11. Finding Reyes to be a career criminal and finding that the conspiracy caused Cooper's death, PSR at 15, Judge Enslen sentenced him on February 23, 1994 to a mandatory term of life imprisonment on count 1 (drug offense) and a concurrent term of 240 months imprisonment on count 2 (financial transaction offense), followed by concurrent terms of supervised release of 10 years on count one and 3 years on count two, as well as a $20,000 fine on count one and $5,000 fine on count two.
Sixth Circuit Affirms. Reyes timely appealed to the Sixth Circuit Court of Appeals, see Doc 246, and the appeal was assigned Appeal No. 94-1284. The Sixth Circuit affirmed Reyes' conviction and sentence by order dated July 5, 1995. In December 1995, Reyes timely filed a petition for writ of certiorari with the United States Supreme Court, which denied the petition in March 1996.
Judge Enslen Denies Reyes's First Habeas Petition, But Grants COA on First of Five Claims. On February 28, 1997, Reyes filed a motion for post-conviction relief under 28 U.S.C. § 2255. Reyes filed his opening brief in March 1997 and the government filed opposition in April 1997. On May 23, 1997, Judge Enslen denied Reyes's section 2255 motion. On June 2, 1997 Reyes filed a motion for reconsideration, which Judge Enslen denied.
In September 1997, Reyes appealed the denial of his motion for reconsideration, and the appeal was assigned No. 97-1966. In October 1997, Reyes, proceeding pro se, requested a certificate of appealability ("COA"); Judge Enslen granted the COA as to the first issue raised in Reyes's petition but not the other issues. Reyes moved for Judge Enslen to reconsider the partial denial of his COA request; after receiving briefs, Judge Enslen declined reconsideration on March 3, 1998.
On June 19, 1998, the Sixth Circuit dismissed Reyes's appeal (from Judge Enslen's refusal to reconsider the denial of his § 2255 motion) for lack of jurisdiction.
Reyes's First Motion for Downward Departure. In December 2002, Reyes filed a motion for downward departure (reduction in sentence) pursuant to 18 U.S.C. § 3582(c)(2); he argued that retroactive Amendment 505 would have resulted in a lower sentence if it had been in effect at the time of his sentencing. The government filed an opposition brief explaining that the life sentence was mandated by Title 21 U.S.C. given the court's findings made at sentencing and the government's supplemental notice. Finding that Amendment 505 merely reduced offense levels based on drug quantity and so did not apply here, Judge Enslen denied Reyes's motion for reduction of sentence by order issued February 14, 2003. On February 28, 2003, Reyes filed a motion to amend judgment, which Judge Enslen denied by order issued March 10, 2003.
Reyes appealed to the Sixth Circuit from the denial of his sentence-reduction motion, and from the denial of his motion to amend that denial. The appeals were assigned Sixth Circuit numbers 03-1282 and 03-1408. In December 2003, the Sixth Circuit affirmed Judge Enslen's denial of the first sentence-reduction motion and his denial of the motion to amend, stating that
[a] guideline sentence is generally governed by statute when the statutory minimum exceeds the otherwise applicable guideline range. See U.S.S.G. § 5G1.1(b); United States v. Barnes, 49 F.3d 1144, 1150 (6th Cir. 1995). Thus, the court acted within its discretion by denying Reyes' motion, as the retroactive application of Amendment 505 would not have affected his sentencing guideline range.
Reyes also argues that the district court's application of § 841(b)(1)(A) violated the holding in Apprendi v. New Jersey, 530 U.S. 466, 490 . . . (2000). However, it is now clear that Apprendi is not retroactively applicable, even to cases on initial collateral review. See Goode . . . , 305 F.3d 378, 382 (6th Cir. ) . . . .
US v. Reyes, 83 F. App'x 796, 797 (6th Cir. Dec. 11, 2003) (C.J. Boggs, Batchelder, Sutton).
Reyes's Motion for Writ of Audita Querela. In January 2005, Reyes filed a motion for a writ of audita querela and a motion for appointment of counsel, contending that US v. Booker (U.S. 2005) and Apprendi (U.S.) prohibited the court from basing his sentence on drug quantities that had not been specifically found by the jury. The government filed an opposition brief, and Judge Enslen denied both motions by order issued March 31, 2005. Reyes timely attempted to appeal, but Judge Enslen denied a COA on June 9, 2003. The Sixth Circuit affirmed on June 19, 2006.
The Instant Motion for Reduction of Sentence under Guideline Amendments 505 and 591. On October 13, 2009, Reyes filed this 18 U.S.C. § 3582(c)(2) motion to reduce his sentence through retroactive application of Amendments 505 and 591 to the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines"); he filed a supplement on October 16, 2009. On November 9, 2009, in response to an order of this court, Reyes filed a Notice explaining that he is seeking reduction of sentence through retroactive application of Guideline Amendments 505 and 591, not Amendments 706 and 711 as the court initially believed. See Doc 546 at 1-2. Reyes notes that Amendment 505 (effective November 1, 1997) and Amendment 591 (effective November 1, 2000) were both expressly made retroactive by U.S.S.G. § 1B1.10(a). See Doc 546 at 2.
By order issued December 22, 2009 this court directed the government to file a brief in response to Reyes's latest sentence-reduction motion. The government timely filed that response brief on Monday, February 22, 2010. Reyes' motion for reduction of sentence stated as follows:
A court may . . . reduce the term of imprisonment when the sentencing range on which the sentence was based "has subsequently been lowered by the Sentencing Commission," the court has considered "the factors set forth in Title 18 U.S.C. § 3553(a) to the extent that they are applicable," and "a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The applicable policy statement, [U.S.S.G.] § 1B1.10(a), provides that a reduction in sentence is warranted when a guideline range has been lowered for a listed Amendment:
Where a defendant is serving a term of imprisonment, and the guideline range applicable [to] that defendant has subsequently been lowered as a result of an amendment to the Guideline Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2).
If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment is not consistent with this policy statement and thus is not authorized .
United States Sentencing Guidelines § 1B1.10(a) (Nov. 2006).
Amendment 505 modified § 2D1.1(c) of the sentencing guidelines to reduce the maximum offense level for drug quantity alone from level 42 to level 38. Amendment 505 became effective November 1, 1997. See § 2D1.(c), U.S.S.G., App. C, Amend. 505. Amendment 505 requires that the base offense level for drug conspiracies to be no more than a level 38. Id.
Amendment 591 requires that the initial selection of the offense guideline be based only on the statute or offense of conviction rather than judicial findings of actual conduct. Amendment 591 became effective November 1, 2000, and modified § 1B1.1(a) of the sentencing guidelines by replacing the existing language with the following rule for the initial selection of the offense guideline: "Determine, pursuant to § 1B1.2 (Applicable Guidelines) the offense guideline section from chapter two (Offense Conduct) applicable to the offense of conviction." See § 1B1.2, U.S.S.G. App. C Amend. 591 (2006).
The Sentencing Commission made Amendments 505 and 591 retroactive, and the petitioner seeks reduction in sentence and resentencing, as well as a hearing to have the retroactive amendments applied in concert with ...